 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Our guest today is Clark Neely, senior attorney and director of the Center for Judicial Engagement at the Institute for Justice. He's also author of the book, Terms of Engagement, How Our Court Should Enforce the Constitution's Promise of Limited Government. Welcome to Free Thoughts, Clark. Thanks for having me. For our listeners who are maybe unfamiliar with it, can you tell us what is the Institute for Justice and what do you guys do? The Institute for Justice is the nation's leading libertarian public interest law firm. In a word, we sue bureaucrats. We work to keep the government off of people's backs when they are trying to earn a living in the occupation of their choice. We also protect property rights and free speech and we also defend school choice programs. And you guys have been to the Supreme Court five times, I think it is? We've been up five times with four wins. And one of those – so the one loss was the key location, the taking a woman's property in a domain decision. Yeah, the idea that essentially the public use provision of the Fifth Amendment means nothing anymore. That's the essential holding of the key location. Yeah, it can mean just getting higher tax revenue, basically. Anything that a government can come up with. Yeah, which gets to the point of what you fight against as an attorney at IJ, which is what we call Institute for Justice. There are around here, I guess, movement types. But you're always fighting against the government giving you any explanation they could possibly want to give. Well, that's right. I mean, that really is kind of the essence of many of our cases. The question of whether the government owes you an honest and good explanation for infringing on your liberty, taking your property, silencing your speech. And my view is that the sort of dirty little secret of modern constitutional law is that there's two different kinds of cases as far as the Supreme Court is concerned. Cases in which the government owes you an honest explanation for infringing on your liberty and cases in which the courts will simply let the government make up explanations that have nothing to do with the truth are palpably insincere and courts will accept those that face value and simply rubber stamp whatever the government is doing. That is the difference between judicial engagement and judicial abdication. When you say make up reasons, what kinds of things are you talking about? Well, I can give you a good example. In our economic liberty work, it's just fraught with totally insincere pretextual explanations for government regulation. I can throw out a couple of them. Florida took the position in a case we had a few years ago that I litigated that they require people to have an interior design degree, which requires, by the way, a college education in interior design and passing what amounts to a bar exam for interior designers. The state took the position in court that they were doing that to protect people from the dangers of unlicensed interior design. That is a false statement. The state of Florida is not remotely trying to protect people from the dangers of unlicensed interior design. First, because there are no such dangers. And second, because it is absolutely crystal clear that that law was passed at the behest of in-state interior designers seeking to discourage competition. There is no other plausible explanation for that law. And yet the state of Florida went into court and said it was all about health and safety, and it certainly was not. Why did the courts buy this, then? I mean, if it's so, there's a laughable on its face, why did they accept it? That's a really good question. That's the deepest question, I guess, maybe. How did they get to this point? It is. And I think the way we got to this point is that around the time of the New Deal, the Supreme Court decided that it didn't want to be in the business of protecting economic liberty in any meaningful way, notwithstanding the fact that, of course, the Constitution certainly does. And so it came up with this kind of legal fiction called the Rational Basis Test, which is actually none of those things, but that essentially going forward from about the middle 1930s onward in cases involving economic regulations, instead of attempting to judge the constitutionality of the government's conduct, courts would henceforth rationalize the legitimacy of government conduct by essentially accepting any purported explanation for the government's conduct and even in some cases helping the government make up justifications for why it's enforcing a given regulation. And really, that was the end of real judging in this area of constitutional law. In other words, that was the beginning of an era of judicial abdication when it comes to enforcing provisions in the Constitution dealing with property rights, economic liberty, and various other rights that the Supreme Court considers to be non-fundamental. So when they're making these decisions, the question is, it's obviously silly that interior design is the sort of thing where we need to protect the health and safety of people from unlicensed interior designers. Well, neon shag carpeting is a real public health issue. We must admit that. But I guess my question is, do the courts come off as in on the joke or are they being duped? So when they're writing their opinions and whatnot, are they kind of like winking like, yeah, we don't buy this, but we want to uphold whatever regulations the states want? Or are they like, no, we really do recognize that there's potential safety harms here? That's a great question. I think it varies by judge. I've asked myself that question for probably 15 years now. And I'll give you an example. So my colleague Scott Bullock won our last big economic liberty case. It was a case involving a bunch of monks who wanted to sell handmade caskets in Louisiana. That was illegal for them to do because in Louisiana, only state licensed funeral directors could sell caskets. That case got up to the Fifth Circuit Court of Appeals. And one of the first questions that Scott was asked during the oral argument came from one of the judges on the panel who said, well, no one's questioning the integrity of your clients. The monks are wonderful. Everybody knows that. But what we have to be concerned about is that casket shop shop down the street. And when I heard that, I thought to myself, well, do you really believe that there's such a thing as a casket shop shop down the street? Or are you pretending as if the legislature might have believed that? Or are you just making it up because you think that's your job in a rational basis case? And I don't know the answer to that question. I suspect it varies by judge. I think some judges are quite sophisticated, very aware of the public choice dynamics involved in much legislation. I think, based on my perceptions at least, other judges are much less aware of those dynamics and might actually believe that the government was trying to protect people and maybe just not doing a very good job of it, but really at the end of the day, they were probably trying to do some good. So I think both explanations are possible. I think some judges get it. They are in on the joke and they just rubber stamp what the government is doing, kind of with a wink and a nod. And I think other judges really are just so unsophisticated when it comes to public choice theory and factions, as the framers call them, that they don't really realize that much economic regulation is really just about advancing the interest of one faction at the expense of another. Before we go into more about economic liberty, I think we should take a step back because everyone actually in this conversation went to law school. So when we talk about what judges are supposed to be doing, we call it a means and analysis is the way we talk about it. And you do the same thing in an interior design licensing case as you do in a first amendment case. So could you describe how you would do that in a first amendment case which is done with, I would say, pretty actual judging usually versus how they do it in a rational basis test for economic liberty or property right? Absolutely. That's a really good point. So let's back up and give an overview of how courts approach constitutional cases involving rights that courts care about, which includes free expression. So imagine we've got this Louisiana florist law, but instead of requiring a license to do floristry, it requires a government license to advertise your floral shop. And that's all the law does. Anybody can do floristry, but you have to have a government license to advertise your business. The Supreme Court considers commercial speech to be much more important than commercial activity. In other words, advertising your business is a really important thing and the courts will protect that, but running it totally unimportant, they won't protect that, but put that aside. Because it's an advertising restriction, what you will get is what's called an intermediate form of scrutiny from the courts called the central Hudson test for commercial speech. Now put aside the jargon and just to understand this, any form of so-called heightened scrutiny including intermediate or strict scrutiny has all of the attributes of what I call real judging or judicial engagement. And they are basically three. There will be a genuine quest for the truth regarding the government's ends and means, I'll explain that in a minute, by a truly neutral adjudicator on the basis of actual evidence. So again, a genuine quest for the truth by a neutral adjudicator on the basis of evidence. So if you go into court and you challenge the advertising ban or restriction on floristry, the first thing the judge will say to the government is, well, why are you requiring a license for people to advertise? What's the problem? What are you trying to fix? And the government has to give an honest and credible answer and essentially say something like, well, people have been getting ripped off by these fraudulent floral advertisements and we're trying to curb that. And then the judge will say, well, do you have any evidence that that's actually a problem? And then the government will have to supply actual admissible evidence to show that there's a problem. The judge will then say, well, is there not some kind of less restrictive way you could have gone about this? Do you maybe require disclosures or just have somebody evaluating the content of these advertisements, maybe even wait until somebody gets defrauded and let them have a civil action in court? And the government will actually have to have a response to that and say, well, here's why we couldn't have done this in a more narrowly tailored way. And they'll actually have to show with evidence that there was just no other way to get at the problem. And for example, if there's evidence, as almost certainly there would be, that the actual basis for this licensing requirement for commercial speech was that there was some other faction. Maybe it was the chocolate candy people who were competing with the florist and they were actually behind the bill. The court would actually care about that. They would usually look at that evidence and say, you know, this looks pretextual. It looks like what's really going on here is the chocolate box guys are trying to shut down the florist. Okay, so that's commercial speech. That's a constitutional value that courts care about and you get real judging or judicial engagement. Now we come to the florist licensing law. Law that requires you to have a license to actually practice floristry. And because that's an economic activity, a right that the Supreme Court considers totally unimportant, trivial, insignificant, meaningless, you get rational basis review, which is just a charade. It's a fraud and a sham. And instead of asking the kinds of questions that I mentioned before, instead the judge will say to the government lawyer roughly, for God's sake, don't tell me what you're actually doing in this case. I don't want to know. But what if you and I put our heads together? What if we come up with something that you might have been doing? Let's think. Well, you know, flowers come from South America, which is true. Most fresh flowers today come from Columbia and they've got some really scary looking insects down there. Maybe you guys are trying to protect people from the dangers of these scary Colombian insects. Is that possible? Is this authentic? Have you heard this before? This is just a little bit over the top. The actual explanations given by the government in the florist case, which I litigated in 2003, were misplaced corsage pins that these could be dangerous. It basically exploding bridal bouquets. The idea that bridal bouquets, the stems are held together with floral wire and one of the witnesses in the case said, well, you know, one thing that could happen is that floral wire could come on sprung and then the bride could get all caught up in a trip and fall. No kidding. This is actually in deposition testimony that I have in my possession. And then the last one that the judge seemed to really lean on the most in upholding the law was the specter of infected dirt. The idea that maybe dirt that clings to the roots of flowers and plants might be infected with something, I never to this day found out what that infection could have been. But again, we're doing rational basis reviews. The truth is unimportant. All that counts is whether the judge and the government lawyer can kind of get together and engage in this joint speculation. And the important thing to remember is the purpose of rational basis review is not to evaluate the actual constitutionality of the law. It is not to protect our constitutional rights. It's essentially developed, was designed to enable judges to go through the motions of judicial review to give the appearance of engaging in judicial review without any of the substance. So that the judiciary could sort of, you know, look at everybody and say, oh, yeah, no, you definitely have a right to earn a living and it's subject to this rational basis review. And then you get to the end of this whole sham and of course what happens virtually all the time is the court finds some reason to uphold the law. The rubber stamps it and everybody goes home happy except for, of course, the person whose right to earn a living has been violated by the state. So I personally think that the rational basis review was invented by the Supreme Court to essentially absolve the judiciary of having to take an honest look at what the legislature is really doing. In, for example, the economic sphere when it comes to property rights, tax policy, et cetera, et cetera. And for that function, absolving the judiciary, providing any meaningful review of the legislature's actual behavior, it's actually a very effective tool at achieving that end. But is there, you mentioned the right to earn a living and some people might be thinking, they might have heard that if they listened to our podcast and put pages into Kato and I.J., but is there a right to earn a living? We know there's a First Amendment. So are you just actually raising a right that doesn't actually exist in the Constitution and you found it somewhere because you like people who earn a living? There's a couple of ways to answer the question. The first way is to say, what's the constitutional right to earn a living? How do we know that? Well, look, the problem about monopolies and essentially government-enforced economic regulations designed to advance the interest of one person or a group at the expense of others goes back centuries at common law. Tim Sanderfer at the Pacific Legal Foundation has a wonderful book called The Right to Earn a Living in which he documents this. The American Revolution was fought in large measure over economic regulations. In fact, the Boston Tea Party was in fact a revolt against a tea monopoly that had been granted to the East India Company. So the Constitution itself is just chock full of economic provisions and concerns including the contract clause in the main body of the Constitution and the Fifth Amendment's public use provision is another one. So anyway, so if you just look at the history, if you're really into history, then it's no question whatsoever that one of the most important considerations is economic issues and economic liberty. Then pile on top of that the Fourteenth Amendment which was ratified in 1868 in the deliberate attempt to stamp out the vestiges slavery. Slavery had been outlawed by the Thirteenth Amendment. Many southern states continued to treat newly freed blacks as if they were still in a state of constructive servitude. Slavery is first and foremost an economic institution. It is about forcing somebody to work for you and then expropriating from them all of the fruits of their labor. The Fourteenth Amendment was designed first and foremost to end that practice. And it has three main provisions in Section 1, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. Every single one of those clauses is accurately read to be at least in part about protecting the economic rights of newly freed blacks, of immigrants who are coming from other places in the world, and of women for example who are getting into the labor market at that time. All citizens in this country have their economic rights protected by the Fourteenth Amendment. I'll just add one more thing. Every single time the Supreme Court has been faced with this question in the last hundred years, is there a constitutional right to earn a living? They have said yes. The only thing that's changed is the courts have substituted a meaningful standard of review for the protecting the right to earn a living for a meaningless standard of review, the rational basis test. So the courts have completely undercut the right, but they've never denied that it exists, and it most emphatically is a constitutional right. But having that as a lower level, does that reflect maybe some sort of judgment that we've made that speech is incredibly important? We talk about freedom of speech all the time, freedom of religion. Rarely do people talk about the right to earn a living. You can always get another job, but if you are not allowed to speak, you may not be able to express yourself, so maybe economic liberty should get less protection than free speech. Yeah, that's certainly an argument that gets made Progressives tend to embrace that argument. They tend to favor much more government regulation of people in the economy. I think there's a number of problems with that. First of all, I don't see any textual basis in the Constitution for courts to be in the business of creating hierarchies of rights. There's nothing in the text of the Constitution that tells us that the right to advertise your business is much more important than the right to run your business. So I think people who take the position, Trevor, that you just articulated, they have a pretty high burden to identify some textual basis for this hierarchy of rights that they propose. Second, I don't think it particularly aligns with real life. If you think about it, it's difficult to imagine a much more fundamental right than the ability to work and put food on your table. It's not really much good having a right to express yourself if you can't support yourself through your economic activity. So that's a second problem. And then third, I would say that if you look at the relevant history again, particularly the reconstruction era and the relentless efforts of certain states to deprive particularly newly freed blacks, but also, for example, white unionists who had moved to the south to live there of their property rights, of their ability to earn a living, of their ability to go about the countryside in search of better opportunities, there is such an abundance of history about how important this right was that to assign it essentially zero value as the Supreme Court has done just absolutely flies in the face of text and history and is totally unsupportable. How does this all relate to this term judicial engagement then? By judicial engagement, you just mean this higher level of scrutiny that we ought to be applying to economic regulations? I mean any level of genuine scrutiny. So judicial engagement really is a term that just describes any case in which a judge is making a genuine effort to evaluate the constitutionality of government's conduct. And again, that process involves a genuine quest for the truth about the government's means and ends. So, for example, are you really trying to protect people's safety from unlicensed interior designers? Or are you merely trying to advance the anti-competitive interests of in-state interior designers? That's a question that has an answer. In fact, for example, when this comes up in a, let's say, in any trust case, in private law, it's a question that courts ask and they have no problem discerning the answer. So when they refuse to make this inquiry in an economic liberty case, it's not because they can't do it, it's because they've chosen not to do it. So the hallmarks of real judging, as I said before, are genuine quest for the truth by a neutral adjudicator on the basis of real facts. And the argument that I make in the book and that really underlies all of the concept of judicial engagement is simply this, there is no class of constitutional rights or constitutional cases in which it is appropriate for judges to abandon the truth-seeking function and merely go through the motions of judicial review while reaching an effectively predetermined result, which is that the government will be permitted to do whatever it wants to do. The problem is that the default setting in constitutional law today is precisely what I just described. Judicial abdication, rubber stamp, dog ate my homework judging, judicial engagement is the exception. Judicial engagement, just the term, sounds like another term that gets thrown around a lot. Judicial activism. How are those different? Judicial activism in its purest essence involves a judge making up or substituting his or her policy preferences for the text of the Constitution. I'll give you an example. I think one of the worst things in the Constitution is the 16th amendment which empowered the federal government to collect income taxes. Up until the addition of the 16th amendment the federal government had no power to collect income taxes. Now giving the federal government that power is roughly the equivalent of giving a teenager the keys to the liquor cabinet, the car and crack cocaine all at once. I mean that's just not a smart policy move in on top of that. Of course you also have to empower the federal government to collect vast amounts of data about our private lives to make sure everybody's paying their share. So I think it's a bad policy. Now imagine in some fanciful alternative universe where a libertarian was a judge and someone came to that libertarian judge and said I would like you to enjoy the federal government from collecting income taxes because I think it violates the Constitution. If I as a judge were to grant that injunction and say yeah I think that's a really bad policy. I'm going to enjoy the government and prevent them from doing this. That would be judicial activism because there is a provision in the Constitution. It's quite clear, empowers the federal government to engage in this conduct and I have no basis to impose my legal preferences for an alternative system. So that's judicial activism. That's a principle definition of judicial activism. That's not the meaning of the term when we see it bandied about today. In fact for example when you hear a politician complaining about judicial activism almost without exception what they are really saying is that judge struck down a law. That judge said no to government and that's judicial activism. And basically what happens is people just apply the term to cases that produce results they don't like. So the Heller Gun case a lot of people came out and said oh that's judicial activism. I mean forget the text of the Constitution. I don't like that result so that must be activism and of course it's the same thing with same sex marriage and basically any case in which somebody disagrees with the result. But again it's generally used and some people use it explicitly and exclusively to describe cases where a court struck down a law on the basis of something other than complete and ineluctable clarity in the Constitution. Problem of course with that is that the Constitution very rarely speaks with complete and ineluctable clarity. There's like maybe four provisions including that you have to be 35 years old to be president. Every single tough constitutional case including for example the First Amendment does it apply to software? Does it apply to flag burning? Does it apply to virtual images of child pornography? Does it apply to political speech? Anything that's not speech it says the word speech. That's right. So the idea that we can do constitutional law by simply pulling out the Constitution and saying hey does this speak to the exact issue in this case? If the answer is yes then I do one thing and if I don't see it in there I do another is an incredibly simplistic way of judging and to suggest that it is activism anytime a court departs from that incredibly simplistic caricature of judicial review is totally counterproductive and really undermines the important authority of courts to engage in judicial review. I mean think about it one of the best things a court can say to government is no. I wish they do it a lot more. The Constitution certainly provides for a lot more no's than the Supreme Court thinks it does. Well you hear a lot of the conservatives. They seem to be the ones who really started on this activism bent maybe because the Warren court protecting the rights of criminal defendants too much or whatever they thought that they were doing wrong Robert Bork comes along and originalism and they've been big on this activism thing for a long time so people who think the libertarians and conservatives are pretty much the same it sounds like you're saying something pretty different than what conservative judging would be. I think many conservatives are beginning to come around on this. Some of them are beginning to realize that this strong commitment to what I sometimes call reflexive restraint or knee jerk deference. Guess whose program that was. That's the progressive program. Progressives had to basically try to transform the judiciary from a fairly robust and engaged branch of government to essentially a bunch of robe wearing lap dogs because so much of what they wanted to do was blatantly unconstitutional. They wanted the federal government to be in charge of the national economy. If you'd asked the framers one one thing that the Constitution was designed to prevent they many of them would have said that. So you get a political movement that comes along and by the way the progressives had a lot of some very ugly policies in addition to top down management of the economy. They were very strongly in favor most of them were very strongly in favor of neighborhood racial segregation eugenics sterilization the list goes on and on. So these things were all unconstitutional and so they basically needed to create a more or less impotent and inert judiciary and the way to do that was essentially to advance this theory of as I said before knee jerk deference that what you do is to decide a constitutional case you take the law you look in your Constitution if the Constitution says in exact and precise terms that that law is unconstitutional you strike it down otherwise you just say yes to government that approach to judging by the way is distilled the distilled essence of it is reflected in Justice Oliver Wendell Holmes' descent in the famous Lochner case from 1905 it's about a page and a half long rant about judicial review and he essentially says roughly unless you can open up your Constitution it says right in there that there's a law or there's a constitutional right to work 10 hours a day there is no such constitutional right and that's as far as judicial inquiry should go. So when we come back I'm getting back to the conservatives it's ironic that the conservatives have really many of them have very strongly embraced this kind of knee jerk deference that was in many ways just invented by the progressives and ran through their blatantly unconstitutional program and it's time to for conservatives I think to really reexamine this embrace of reflexive deference and many of them to their credit are doing that. I think many by the way were prompted to do that by the result in the NFIB v. Sebelius case which upheld the Affordable Care Act but only on the basis of the Chief Justice essentially rewriting chunks of federal law in order to the square peg of the Affordable Care Act into the round hole of the Constitution he certainly did rewrite portions of the ACA and I think a lot of conservatives saw that and said well if that's where we've gotten to with judicial deference that's just too far. Well doesn't that just mean then that they'll like it when they're not in power and they'll be against it again when they are that it's not so much they're seeing the value in this thing but it's just that this is a way to stop the Democrats from doing it. Well you hear the Democrats complaining about the activism of the Roberts court so it seems to be just a ball they toss back and forth right. You know this gives you an opportunity to sing the praises of judicial engagement again I want to emphasize something. Some people hear judicial engagement and as you pointed out earlier that they think it's just a new way of saying judicial activism or you know it's shorthand for results that libertarians like and nothing could be further from the truth on the contrary judicial engagement will sometimes produce results that libertarians strongly dislike and gave you an example earlier and engage judge would absolutely uphold the constitutional authority of the federal government to impose an income tax however unwise that might be. Judicial engagement is about a process it's about a mindset it's a way of approaching constitutional cases where you you don't start out with any sort of predetermination that I'm going to favor this side or that side I'm simply going to look at what's really going on in this case I'm going to try to do my best to apply the relevant constitutional text I'm not going to deprive it of all meaning as the Supreme Court did with the contract clause during the Great Depression as it did with the public use provision of the Fifth Amendment in Kilo just going to approach this case and let the chips fall where they may. That's judicial engagement and it sometimes will produce results that conservatives like sometimes produce results that liberals like and sometimes produce results that they both hate but guess what the Constitution says what it says and the role of judges is to apply it as best they can to what the government is actually doing and as I said before let the chips fall where they may. I have a lot of confidence in our Constitution. I have tremendous confidence in our system of government. I think this country can absolutely survive an engaged judiciary that insists upon an honest explanation whenever it is reviewing the constitutionality of government conduct. We don't have that but I think I think we really need it and I think it would be all to the good. You said the Constitution says what it says and there's very few unambiguous or very few crystal clear provisions within the Constitution so I'm wondering how judicial engagement I guess interfaces are placed with these methods of interpretation because we hear about there are different kind of philosophical approaches you can take to reading the Constitution so we hear about originalism, we hear about textualism, we hear about things like living Constitution and so wouldn't judicial engagement, given that you need some method of interpreting the Constitution we don't seem to have one that is obviously true wouldn't we need, wouldn't we get different results from judicial engagement or judicial engagement might look more like judicial activism with one versus the other? Yes I mean look the short answer is yes we have all got to make peace with the fact that you cannot write a Constitution that is short enough for people to read and understand but detailed enough to answer every question with complete clarity that might come up now some people unfortunately particularly Judge J. Harvey Wilkinson on the Fourth Circuit Court of Appeals their response to this problem is essentially to say look then whatever the Constitution doesn't unambiguously address the government gets to do the problem with that of course is that itself is a theory of constitutional interpretation notwithstanding the fact that Judge Wilkinson claims not to have a theory of constitutional interpretation that is a theory of constitutional interpretation goes all the way back to the progressive era as I mentioned before was very popular back then and really it's just a new version of that different people can have different views about the best way to interpret the Constitution in any given setting and you're right we've got things like we've got originalism, we've got pragmatists we've got perfectionists living constitutionalists and I think that what we can all hopefully do is agree the point is not to pick which one of those theories is the right theory to interpret the Constitution they all have virtues and limits what is important in my view is to recognize that whatever your approach to the Constitution you should always do two things first do not impose your own personal preferences for policy and that's judicial activism so don't do that and second do your best to reach a consistent understanding of the Constitution and don't for example approach the Second Amendment in one way where you for example insist upon the militia clause of Second Amendment says a well-regulated militia being necessary to the security of a free state the right of the people to keep and bear arms shall not be infringed many people who don't like the policy of the Second Amendment namely that people are allowed to own guns put so much weight on that first clause that they render the rest of the Second Amendment meaningless but guess what they don't take that same approach to other provisions in the Constitution that have a preamble such as the part of the article one section eight that deals with intellectual property and empowers the federal government to pass intellectual property laws to promote the useful arts and sciences they don't attribute that kind of significance to that preamble so that's an example of what I'm talking about is remain consistent and recognize that when you remain consistent and do not project your own preferences and views on the Constitution it will sometimes reach results that you don't like and maybe that's a signal that you're getting it right but anyway so I think it's there's room for disagreement at the margins but if we remain consistent and we insist upon an honest explanation for the government's conduct in every case judicial engagement we will reach consistently better and more defensible results then the court is reaching now with its essentially sort of rehashed version of the progressive era knee-jerk deference that we're seeing in most cases today. I think that you brought up J. Harvey Wilkinson and I think the theory behind his type of philosophy though is that he's trying to sort of get everyone to put down their arms right the majoritarianism with just you know enforcing explicit rules of the Constitution is the best way and if you do that all the time then you're also applying a consistent principle although of course majoritarianism usually doesn't work for First Amendment and things that are explicitly listed in the Constitution but you mentioned all of Wendell Holmes that was basically his judicial philosophy in Lochnery says I would not stand in the way of a majority to enact their views into law which he believed in terms of bakers in New York and he also believed in terms of forcibly sterilizing Kerry Buck in 1927 both of those were things the majorities could enact in law but do you think that the Constitution actually speaks to this whether or not the majorities how much we should give deference to majorities in this isn't it a majoritarian document in some way to let people rule themselves I just I don't know how people pick up the Constitution and see in it a majoritarian document I just I find that utterly perplexing I read the Constitution I see all kinds of hurdles and hoops and deliberate roadblocks to legislation and that's just the structural parts of the Constitution then you've got the explicit carve-outs of various rights and the Ninth Amendment that says hey to be clear we didn't try to list all of the rights and you bring up a perfect example a perfect illustration of that Trevor which is the the Buck V. Bell case from 1927 really underscores the horrifying and morally appalling results that can happen if you take that approach to the Constitution in other words the it has to be clearly written in the Constitution or there's no constitutional right at stake. Kerry Buck was a 19 year old Virginia resident who was forcibly sterilized by the state for quote-unquote being socially inferior the state asserted that she was basically stupid and promiscuous both of those claims by the way were false it turns out she may have had some reading issues and she was basically about average and intelligence she may have had dyslexia or something like that and she did have a child out of wedlock but no one bothered to ask why apparently if they had they would have found out it was because she was raped by a family friend so the state of Virginia proposes to sterilize Kerry Buck on the basis of false assertions about her character and really obviously in the pursuit and frankly avowedly in the pursuit of eugenics and that case went up to the U.S. Supreme Court Justice Oliver Wendell Holmes wrote an 8 to 1 opinion saying yep totally fine I don't see anything in the Constitution about not tearing out somebody's reproductive organs if you don't want them to have babies and he has that famous statement three generations of imbeciles are enough do you know that justice Oliver Wendell Holmes considered that one of his great opinions of all time even late in life he was proud of that decision even more do you know that the original copy of that the original draft of it was more monstrous we don't even have it we just his colleagues said that they asked him to tone it down I'm uphold so but we can go on and on giving examples there was the pierce the society of sisters case out of Oregon in the early part of the 20th century the state of Oregon made it illegal to send your child to private schools and made it illegal to run a private school and of course the state wanted people to believe oh this is about making sure everybody gets a good education and they come from a similar cultural background get a similar immersion in the cultural principles of America that was preposterous it had nothing to do with that that law was passed at the behest of the KKK and other nativists who wanted to stick it to Catholics who basically didn't want their children to be forced to attend a validly Protestant public schools which they were back then so it really matters a lot whether the courts credulously accept at face value whatever the government tells them is the policy or actually look behind the government's asserted justifications to find out what's really going on and again what I reject is the idea that courts should do that in some cases in other words make a genuine inquiry into what's really going on hey did Kerry Buck really have that baby out of wedlock because she's promiscuous or because she was raped not that that would have supported the policy of course but at least ask the question are you criminalizing sending your child to private school because you want them to get a good education or because you want them to be indoctrinated in the Protestant faith that's a question to ask and guess what the Supreme Court has decided that there are some cases in which courts should close questions and try to get real answers and other cases by the way the vast majority in which courts should simply accept at face value whatever the government says and rubber stamp what it's doing that is the difference between judicial engagement and judicial abdication and let me be perfectly clear judicial abdication which is the default setting for courts in constitutional cases today is fake judging it is indefensible and it makes a mockery of the institution of constitutionally limited government because it is no meaningful judicial review it is simply judges going through the motions and we all deserve better than that and our constitution deserves better than that several times you said the judges shouldn't approach making decisions about what's allowed in the constitution based on policy preferences but what about consequences I mean what we can imagine situations where the judge sees that whatever the government is doing is clearly unconstitutional but striking it down right now might lead to really awful consequences you know there's a program that millions of people depend on or it's a huge federal department that we're now going to shut down or that the policy well unconstitutional for whatever reason is proving to be extraordinarily helpful should those sorts of factors matter at all in the decisions a judge makes or should it just be whatever the constitution says done rarely and for several reasons one reason is because as Justice Scalia pointed out in his heller majority the constitution itself is what determines what are going to be the fundamental underlying policies of this country some people might argue you know it's really not a good idea to let everybody participate in government maybe only some people should be able to participate maybe we should do it that way you could make an argument but that decision about what whether to have a participatory democracy or some other system has already been made it is not for us to revisit that question any of course made that that statement in connection with the right of individuals to own guns you can argue that's a good idea you can argue that's a bad idea but the fundamental decision about whether to allow has already been made in the text of the constitution so to come along and essentially say yeah but you know the consequences of that decision or that that textual provision are just too scary and dangerous so let's we're going to do something different is an end of constitutional government if you allow people to do that if you press that to the extreme second it turns out that when you I mean you know we all know this but let's just be really clear about it one of the most important insights of Austrian economics and every economist since then who speaks to this issue is it turns out to be just really really hard to have solid information about and make accurate predictions regarding the behavior of large numbers of people so you create something like the social security program and you think okay well this will be great you know people will save on their own but will supplement it with this additional payment and then these things will happen and so forth and so on and what it turns out is that the collective behavior of millions and millions of people turns out to be so unpredictable and the information you would need in order to even try to make those predictions is so difficult to get that for somebody to essentially say well I know what the consequences are going to be of doing it this way versus that way usually are not very credible when you're dealing particularly when you're dealing with complex federal programs laws like social security or for that matter Obamacare so I'm very skeptical of a judge who will take the position I can confidently tell you what's going to happen if this policy is struck down and the third thing I would add which is connected to the first two is essentially that the Constitution I love the Constitution in part because to me it reflects such incredible modesty modesty about what people are really capable of and where they should be devoting most of their attention where we should be devoting most of our attention is living a better lives ourselves and helping our families and perhaps our friends and nearby communities to lead better lives by example but not by force and I really think that's the defining essence of the Constitution is that it reveals a great skepticism about allowing people to impose their will on others for the purpose of making them better or making society better and the framers I think had this amazing insight into what we've been talking about here which is that people may start out with the best of intentions when it comes to for example creating a retirement program for all of their friends and neighbors or a health program for all of their friends but when those programs are implemented through coercion as they must be then things begin to fall apart and I think in large there's a kind of almost a a if you want to look at the western tradition of the doctrine of original sin there's a kind of an original sin there in having the arrogance to believe that you know enough and you are wise enough to pass a law that covers millions and millions and millions of peoples and addresses and tastes their desires their goals and basically supplants your belief about what would be best for their individual autonomy so that to me is the constitution in a nutshell and I just don't really believe that it is appropriate for judges to substitute their own well let's be honest it's got feelings about what would be too dangerous or you know unwise when it comes to essentially saying look the constitution just doesn't permit the government to implement this policy as I said before I think if we just stick to the text of the constitution which provides a fairly limited scope for government action let the chips fall where they may if disaster really appears to be on the horizon there is an amendment process and we have availed ourselves of it in the past and we can do it again so although I agree with you absolutely the judges need to be doing this but even aside from consequences like social security programs and things like this this is like a Scalia-Thomas divide this will write an opinion that would invalidate feasibly invalidate maybe 70% of the federal government alright guys, packing up the Department of Agriculture, Department of Commerce like we're all going home and Scalia says well no no no at some point although I think this is wrong there's a time that has gone past that we have to sort of accept and even actually Richard Epstein has said this it's like a prescriptive easement that the government now gets how do you feel about that well look there's a tension I think between allowing demonstrably unconstitutional policies to continue to be on the books I'll give an example virtually everybody sort of a libertarian and conservative strike understands that the Wicker decision from I think it was 1942 which essentially upheld the power of the federal government to dictate to each and every farmer in the country how much wheat they can grow regardless of whether they sell their wheat or buy wheat on the interstate market that that was a valid exercise of Congress's power to regulate commerce between the states look it's a preposterous decision it's based on this aggregation principle that frankly destroys the whole concept of federalism because it throws open the door to whatever the federal government wants to do if anybody is worried that the Wicker case is going to be overruled in the next 10 or 20 years they can rest easy Justice Thomas may well write an impassioned dissenting opinion where he explains the irrationality and the nonsensical qualities of the Wicker opinion but that's not going to become Supreme Court doctrine anytime soon because you'd have to get among other things five justices who not only agree with him but are prepared to strike down federal laws on the basis that for example the aggregation principle is bunk which it is so I kind of view this whole question as a bit like worrying about what will the consequences be if we take this ocean liner that we're on and we perform a perfect 90 degree right turn in the middle of the ocean it's impossible it defies the laws of physics and the same is true of the Supreme Court the Supreme Court is never going to wake up tomorrow and it's going to be 30% of the federal government so I view it really as maybe coming in three phases we're in phase one right now which is you've got one maybe two Supreme Court justices who view a significant amount of what the federal government is doing in particular as illegitimate and they explain why maybe phase two is you get two or three justices and they begin to kind of spark a national conversation like well should we reject for example the aggregation principle and then phase three and I think this really would be the final phase because I don't think there is a phase four phase three if there's a kind of a national seems to be some national consensus that perhaps it's time to revisit that what happens is through the process of incrementalism the court will begin to turn to go back to my earlier metaphor begin to turn the ocean liner for example of federalism back in a more faithful direction that will be inevitably a slow process but there is no phase four in which the Supreme Court begins willy-nilly striking down virtually everything the federal government does that is never going to happen no one needs to worry about that it will be a process of as I said incrementalism there will be a lot of feedback there will be a lot of reflection and that frankly is the best case scenario I'm not even sure whether I think that's very likely it may be that the ocean liner of federalism just continues steaming right into the giant iceberg field is never seen again but in terms of rights though that would be the power side in terms of rights that's where IJ is really fighting a lot of this stuff out and one thing I think we have this rational basis test we have this economic liberty test it's becoming more well known that I think this is an important an important value in a free society is the right to earn a living you're starting to see opinions coming out IJ wins cases it doesn't lose every case in the district courts and the court appeals where are we going next with this right now there's a circuit split right between the 5th circuit and the 10th circuit on whether or not pure protectionism is a valid goal of the state and so IJ has a whole strategy on this so where do you see it coming for the next 10 or 20 years well it is an incredibly exciting time to be advocating for economic liberty because as you say a lot of people are getting how incredibly fundamental economic liberty is to the well being of this country and to our future prosperity there's been hearings over on the hill they've invited people from the FTC to come and comment about how anti-competitive state licensing laws are stalling the economy so forth and so on and as you mentioned we've also seen judges begin to take a more conscientious I might say a more engaged approach to economic liberty cases and I would say that there are two basic fault lines in sort of the current Supreme Court jurisprudence which says that economic liberty is a meaningless right not entitled to any significant judicial review the first one is that that's just false the idea that the right to earn a living is non-fundamental is not deeply rooted in this nation's history and intrinsic in the concept of ordered liberty pick your language from whatever cases you want is preposterous it is ludicrous it is a fiction that was invented during the progressive era in order to enable the government essentially to control the entire economy but has nothing to do with reality certainly has nothing to do with the history of this country so point one is the proposition that economic liberty is not fundamental is preposterous second what courts must do in order to effectuate this sort of disregard for economic liberty is also indefensible and we spent quite a while talking about it but to recap it is essentially ignoring what's really going on it is taking a commercial advertising case commercial speech case for example and saying alright it's commercial speech then tell me what's really going on and I'm actually going to make that inquiry oh wait it's a commercial activity oh now I don't care what's really going on and I'm not going to ask what's really going on that's an indefensible approach to judging there is as I said before no class of cases in which it is appropriate for the judiciary to abandon the truth-seeking function and accept as legitimate demonstrably insincere and pretextual explanations for government conduct so I think that that whole house of cards is beginning to collapse and fewer and fewer people are willing to try to defend that indefensible approach to judging and I actually enjoy finding the last few who will try to defend it because it's a wonderful topic to debate because basically it just cannot be defended when you put it out on the table call it what it is it just turns out to be virtually, not knowing how to say virtually it is impossible to defend that approach to judging an approach which says that in some cases you ask what the government is really doing and you insist upon honest explanations and in other cases the proper role of the judge is to collaborate with the government lawyer in helping make up something to sort of pull the wool over the eyes of the populace and pretend as if the government was doing a legitimate end like protecting the people of Florida from the dangers of unlicensed interior design when in fact it is perfectly clear to everybody who didn't just fall off a turnip truck that the state of Florida is in fact protecting in-state interior designers from competition so it's an incredibly exciting time to be litigating for economic liberty I don't know what the time frame is but I really do think that the momentum that we're gaining both in the court a public opinion and in actual courts is hopefully at certain point going to become irresistible and the rest will just be process and details but that the outcome will be assured which is that courts will begin treating economic liberty and particularly the right to earn a living as the fundamental right that it is and has always been notwithstanding the Supreme Court's abdication of responsibility in this area Thank you for listening to Free Thoughts If you have any questions or comments about today's show you can find us on twitter at Free Thoughts Pod Free Thoughts is a project of Libertarianism.org and the Cato Institute and is produced by Evan Banks To learn more about Libertarianism 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